Vinod Kumar vs State of Haryana

R.L. Anand, J.

Shri Vinod Kumar present appellant alongwith Kuldip Singh was tried for an offence under Sections 363, 366A and 376 of the Indian Penal Code. Prosecutrixes in this case are two in numbers namely Manju and her younger sister Suman Lata. F.I.R. No. 103 dated 3.5.1996 was registered in Police Station Shahbad, District Kurukshetra. The brief facts of the case are that Phool Kumar is father of both the prosecutrixes. He was aged about 40 years. Harijan by caste and had been working as a labourer. He has two daughters namely Manju according to the complainant aged about 15 years and Suman Lata aged about 12 years and two sons namely Sunil Kumar aged 5 years and Ashwani Kumar aged 19 years. The complainant was ill for the last one year and that is why his wife Krishna and two daughters used to work with Narinder Chawla who used to deal in potato and vegetables. The appellant and his companion Kuldip Singh also used to work as contractors. In this manner they developed relations with Phool Kumar and started visiting his house. Vinod Kumar, the present appellant had been donating blood for Phool Kumar. The story of the prosecution further proceeds that on 30.4.1996 both the daughters of the complainant had gone after lunch to the house of his father which adjoins his house. In the morning of 1.5.1996 he did not find both the daughters in the house. He searched for them in the relations. Then he started doubting over the appellant and his companion that they might have enticed his daughters. As a result the complainant made statement on 3.5.1996 on the basis of which case was registered (against ?) the appellant and his companion under sections 363 and 366 of the Indian Penal Code. It is further alleged that on 2.7.1996 on receipt of information, Tara Chand ASI had gone to Udhampur (J&K) and arrested the appellant and his companion on 3.7.1996 and recovered Manju and Suman from their custody and then both the accused were got medically examined and the clothes worn by them were taken into possession. On 4.7.1997 statements of Manju and Suman were recorded under section 164 Cr.P.C. and they were medically examined. On completion of the investigation of the case, appellant and his companion Kuldip Singh were challaned under sections 363/366/376 of the Indian Penal Code in the court of the Area Magistrate and vide commitment order dated 24.9.1996 committed the accused to the court of Sessions to face trial.

Vide orders dated 9.10.1996, the appellant and his companion were chargesheeted for offences under sections 363/34, 366/34, 366A/34 and 376(g) of the Indian Penal Code. The charges were read over and explained to the accused, to which they pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined Doctor Suresh Sharma (PW. 1), Manju Devi (prosecutrix) (PW. 2), MHC Parveen Kumar (PW. 3), Constable Devinder Kumar (PW. 4), S.I. Gulab Singh (PW. 5), ASI Yash Pal (PW. 6), Smt. Rajwant Kaur (PW. 7), Constable Subhash Chander (PW. 8), Draftsman Sudeep Kumar (PW. 9), Mrs. Vani Gopal Sharma, JMIC, Kurukshetra (PW. 10), Suman (prosecutrix) (PW. 11), Phool Kumar (father of both the girls) (PW. 12), S.I. Purshotam Lal (PW. 13), Doctor Sushma Saini (PW. 14) and S.I. Tara Chand (PW. 15). The prosecution also tendered in evidence the report of the Forensic Science Laboratory Ex. PQ and Ex. PQ/1 and closed the case.

Statement of the accused was recorded under section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The defence of the present appellant Shri Vinod Kumar before the trial court was as follows :

"I am innocent. I have been falsely implicated in this case. In fact, the father of prosecutrix namely Phul Kumar was suffering from anaemia. I alongwith my coaccused Kuldip Singh spent about Rs. 20,000/ on his treatment. Even I donated blood to him. Then after he was partly cured, he went to his house. Then he alongwith his coaccused went to his house to demand money. He refused to return the money. Then on the following day, be brought the police and they lifted us from the room taken by them on rent in Dyal Nagar Colony, Shahbad. We were brought by the police on the same day i.e. 3.7.1996 and the case was planted upon us on that day."

I need not to incorporate the plea of Shri Kuldip Singh since he has been acquitted by the trial court and there is no State appeal against his acquittal.

In defence the accused did not lead any evidence.

The learned Trial Court held that Smt. Manju prosecutrix was a consenting party to the alleged act of kidnapping and rape etc. and that Manju has not implicated Kuldip Singh, therefore benefit of doubt was given to him. With regard to the present appellant, the finding of the trial Court is that Suman Lata was less than 16 years and though she may be consenting party to rape and her kidnapping, it did not advance the case of the appellant. The learned trial Court convicted and sentenced in the manner stated above. Feeling against his conviction and sentence, the present appeal.

I have heard Shri A.S. Virk, learned Counsel appearing on behalf of the appellant and Shri Aman Chaudhary Advocate appearing on behalf of the State and with their help gone through the record of this case.

Before I discuss the contentions raised by the learned Counsel for the appellant I would like to refer to the relevant evidence. Doctor Suresh Sharma while appearing as PW. 1 stated that Vinod Kumar, appellant who was aged about 24 years was fit to perform sexual intercourse and Ex. PB is Medico Legal report in this behalf. The gist of statement of Manju Devi (PW.2) was that on 1.5.1996 she alongwith her sister Suman were going to Cold Storage to enquire about the work and when they were about to enter the gate, both the accused met them outside the gate. Both of them told them that there was no job in that Cold Storage and that they may enquire from other storage. Further it has been stated by Manju Devi that appellant and his companion required them to accompany and as a result they followed them near Railway line. Reaching near Railway line, Vinod Kumar appellant took her sister Suman in the nearby pits whereas Kuldip Singh companion of the present appellant took her in the nearby pits. Kuldip Singh committed sexual intercourse with this witness by giving threat of the knife. Thereafter she and her sister were taken to bus stand Shahbad. From there they boarded in a bus. They were threatened to kill in case they raised alarm. For 2/3 days Vinod Kumar appellant and his companion Kuldip Singh continued travelling in different buses and ultimately they were taken to Udhampur (J&K). The appellant and his companion got them employed in a mill and she along with her sister stayed in a rented room for about one month. During that period also Kuldip Singh committed sexual intercourse with her while Vinod Kumar appellant had been committing sexual intercourse with his sister Suman Lata. Finally she narrated all the facts to a lady who informed the contractor of the Mill who in turn informed the Local Police. Parveen Kumar (PW. 3) and Devinder Kumar (PW. 6) simply proved F.I.R. Ex. PF/2. Smt. Rajwant Kaur (PW. 7) Head Mistress, Government Middle School, Shahbad proved date of Birth of Manju Rani and Suman Lata. She stated that according to school record, the Date of Birth of Manju is 25.4.1978 while that of Suman Lata is 20.5.1980. Ex. PG and Ex. PG/1 are the relevant certificates. Statement of Subhash Chander (PW. 8) is formal in nature. Likewise Sudeep Kumar Draftsman (PW. 9) simply prepared scaled plan Ex. PH. Mrs. Vani Gopal Sharma (PW. 10), Judicial Magistrate Ist Class recorded statements of both the prosecutrixes under section 164 Cr.P.C. The statement of Miss Suman Lata is relevant for our purposes and according to her at about 10.00/11.00 A.M on 1.5.1996 she alongwith sister Manju had gone to the Cold Storage to know about the availability of work where both the accused were present outside the gate of the Cold Storage. They told them that there was no work in the Cold Storage and they should go to some other store for seeking work. Further it has been stated by the prosexutrix that the appellant took her to pits and committed sexual intercourse with her forcibly. Suman prosecutrix does not implicate Kuldip Singh by name and stated that another accused committed rape upon his sister Manju. It has been further stated by Suman that rape was committed by the present appellant by showing her knife. Also it has come in the statement of this witness that she was taken to Udhampur. The appellant and his companion got themselves employed in a flour mill and for one month she stayed with the appellant at Udhampur. Finally the matter was told to a lady who informed the same to the contractor as a result of which she alongwith her sister Manju were recovered from the custody of the appellant and his companion Kuldip Singh. Phool Kumar (PW. 12) deposed that Manju and Suman Lata are his daughters and on 1.5.1990 both of them had gone to Cold Storage for doing work but thereafter they did not turn up. It has also come in the statement of this witness that Manju was aged 17 years and Suman was aged 15 years. This witness also deposed that he was not having good health and that Vinod Kumar appellant at one occasion even donated one bottle of blood for him and the appellant and his companion Kuldip Singh had been coming to his house. I need not give brief statement of other witnesses for the purpose of disposal of the present appeal.

The contention which was raised by the learned Counsel for the appellant is that it is proved on the record that Suman Lata was a girl of 21 years and she was a consenting party to the act of sexual intercourse. She left the house at her own accord alongwith her sister Manju and the trial Court has wrongly held that Suman Lata was less than 16 years and in these circumstances, the appellant has not committed offences under sections 363/366A and 376 I.P.C. In support of his contentions the learned Counsel for the appellant relied upon the crossexamination of Shri Phool Kumar father of the girls who deposed as follows :

"I have studied upto B.A. Ist year. I sign in English language. Ex. PF is the correct statement which I gave to the police. It is correct that in my statement Ex.PF, I have stated that I am ill for the last one year. I was married in the year 1970. Initially one son was born to his wife and he died. He was born in 1972 and died after 5/7 days. Thereafter Manju was born after one year. Thereafter Suman was born after two years from the birth of Manju. My two daughters were born at Panipat."

The learned Counsel unfolding his submission has submitted that Phool Kumar is an educated person. He has studied upto B.A. Ist Year. He was categorical when his marriage took place in the year 1970. The first child was born in 1972. Manju was born after one year meaning thereby that her Date of Birth is in the year 1973. In this manner, Date of Birth of Suman Lata should be in the year 1975. As the present occurrence had taken place on 30.4.1996/1.5.1996, there was no difficulty in holding that Suman Lata is 21 years. Learned Counsel also submitted that no birth certificate of the prosecutrix has been produced and no ossification test has been conducted, in these circumstances, the certificate of school though admissible piece of evidence is not conclusive as to determine the age of Manju and Suman Lata.

I have considered the submission raised by the learned Counsel for the appellant and am of the opinion that the lines in the crossexamination of Phool Kumar cannot create reasonable dent in the story of the prosecution in view of the overwhelming evidence which has come from an independent source with regard to these prosecutrixes. It is true that birth entry of Manju and Suman Lata has not been produced on the record, equally it is true that ossification test was not got conducted by the police. From the statement of Rajwant Kaur, it is clear that as per admission form Date of Birth of Manju is 25.4.1978 while that of Suman Lata is 20.5.1980. In this view of the matter, Suman Lata was less than 16 yeas of age as on 1.5.1996. Lady Doctor Sushma Saini (PW. 14) medically examined Suman Lata on 4.7.1996 and the observations of the Doctor are as follows :

"Her general condition was good. She was fully conscious. Pulse was 76 per minute. Temperature was normal. B.P. was 120/70 mm of mercury. Age of Menarche was 6 to 8 months back although exactly she did not remember. Last menstrual period was 29.6.1996."

This would show that Suman Lata starting mensurating only a few months prior to her examination. Menstruation of a girl invariably starts between 12 to 14 years in this part of the country and from this it can be reasonably inferred that Suman Lata was definitely less than 16 years of age as on 1.5.1996. The things do not stop here. Manju Devi while appearing in the witness box on 5.12.1996 gave her age as 16 years. Suman Lata was younger to Manju. Suman Lata has also categorically stated about her age. No iota of suggestion was put to Suman Lata that her Date of Birth is not in the year 1975 or that she was more than 16 years of age on the date of commission of the offence. In this view of the evidence coupled with the statement of the prosecutrix and even by the statement of Shri Phool Kumar who deposed in the examinationinchief about the ages of his daughters, this court has no hesitation in holding that Suman Lata was definitely less than 16 years of age and this aspect of the case is further strengthened from the documentary evidence i.e. the school leaving certificate in which Date of Birth of Suman Lata has been shown as 1980. Once it is established on the record that Suman Lata was less than 16 years of age then consent or no consent on her part is immaterial. Suman Lata was allegedly kidnapped from the lawful guardianship of her parents for purposes of sexual intercourse. The Doctor has also stated that she was subjected to sexual intercourse. In this view of the matter, I am inclined to sustain conviction of the appellant Vinod Kumar on all the three counts i.e. under Sections 363, 366A and 376(g) of the Indian Penal Code.

Faced with this difficulty, learned Counsel for the appellant submitted that age of Suman Lata was marginal one. As per School Leaving Certificate she would have crossed 16 years of age as on 21.5.1996 i.e. after 22 days and in that eventuality the case of Vinod Kumar would have been at par with that of Kuldip Singh who was given benefit of doubt. Kuldip Singh committed sexual intercourse with Manju who was a young girl of more than 18 years and she was a consenting party. Both the girls remained in the company of Vinod Kumar and Kuldip Singh for more than two months and at no point of time they ever resisted about the alleged acts of rape. Learned Counsel in the light of the above, submitted that Vinod Kumar appellant must be visited with leniency in the matter of sentence who is in custody since the date of his arrest. Under section 376 I.P.C. for adequate and special reasons, the court has the power to award lesser sentence than the one minimum prescribed under the section. In the present case special reasons have been given for reducing the substantive sentence of Vinod Kumar appellant.

Resultantly substantive sentence awarded to Vinod Kumar is reduced to five years from seven years under section 376 of the Indian Penal Code which shall run concurrently with the sentences awarded to the present appellant under sections 363 and 366A of the Indian Penal Code. The sentence of fine shall remain undisturbed. With the above modification in the matter of sentence, this appeal fails and is hereby dismissed.